D.M. police won't give up records in '96 shooting

Jun. 11, 2008

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The Des Moines Police Department refuses to release records that could shed light on whether the right man was sent to prison in a high-profile gang-related murder.

The Des Moines Register requested police records relating to the death of Rafael Robinson and related police cases after learning that three people had named the former gang member as the real shooter whose bullet took the life of Des Moines bank executive Phyllis Davis, 42, in 1996.

David Flores, then 19, was convicted of killing Davis, who was caught in the middle of a gun battle between two cars near Ninth Street and University Avenue.

Flores' family said police are blocking their efforts to prove who killed the innocent woman.

"If an ordinary American citizen did what Des Moines police are doing, that would be called obstruction of justice," said Anthony Flores, David Flores' brother. "Those records are very valuable in establishing the truth."

Anthony Flores has been hunting for information for 12 years that could overturn his brother's conviction for first-degree murder.

Flores and his attorney have been trying to build a case to have David Flores' conviction reconsidered. A court hearing is scheduled for June 30 to determine whether a new trial will be ordered.

National experts have said that Flores' argument for a new trial — normally a longshot — is far stronger than most. Prosecutors and judges have acknowledged that the case against David Flores, now 31 and serving a life prison sentence, was weak at the time he was convicted in 1997.

One element that will be central to Flores' hearing is whether police had access to an FBI report that pointed to Robinson as another suspect in Davis' death.

Flores' defense first learned in 2003 that the report existed — after his appeals were exhausted. But it took them years to discover the contents of the report.

What is unclear is whether police or prosecutors ever followed up on the FBI's interview with a gang member who said he helped Robinson flee from Des Moines after the Davis shooting.

Robinson was shot at the Oakridge low-income housing complex three months after Davis was inadvertently gunned down while driving home from work.

Robinson's killer was never found.

This week, Polk County Attorney John Sarcone moved to block release of police records related to Robinson's death — even though police have not arrested a suspect in 12 years. Flores' defense filed a motion to release the records May 24.

"Without dispute, the Rafael Robinson murder investigation is an ongoing investigation that is at present unsolved," Assistant County Attorney Joe Weeg said.

The investigation "may be compromised by a general perusal of the file, according to discussions with the representatives of the Des Moines Police Department."

However, prosecutors said they would not object to a review of the police file or the FBI report in a judge's chambers, the filing by the county attorney said.

The Register's request for information from police under Iowa's public-records law was more comprehensive than that made by Flores' lawyer.

That's because the newspaper learned the FBI report first surfaced in connection with another criminal case unconnected to Robinson's death.

In addition to requesting all police records related to the deaths of Davis and Robinson, the newspaper asked to review all records related to another murder and the criminal case of Jermaine Allen, another man convicted in connection with the Davis shooting.

But Assistant City Attorney Douglas Philiph, after a meeting with police and prosecutors, denied the newspaper access to all but basic facts surrounding the cases. He said each case was open and ongoing.

He cited Flores' appeal as one reason for denying records related to Davis's murder and the Allen case. He also cited the pending appeals in the homicide of Dawue Stigler and the unsolved nature of Robinson's murder.

The Register then asked specifically if police would disclose when and if the FBI report was given to police as part of those cases.

Philiph declined, saying Weeg asked police not to do so.

"We didn't want to release information that he couldn't otherwise do so as a prosecutor," Philiph said. "He's saying that you're going to get your answer eventually, but it will be through the court system."

Nothing in Iowa's open-records law precludes police from releasing the police records. Indeed, police sometimes choose to release records in so-called cold cases so the public can help detectives discover the truth about old, unsolved crimes.

But some legal experts say it is not uncommon for police to try to conceal information in alleged cases of wrongful conviction, even in the face of evidence that another suspect could have been to blame.

"Police and prosecutors are usually reluctant, even if their predecessors might have been responsible for any mistakes," said Steve Weinberg, an investigative reporter who helped create the "Innocence Project" at the University of Missouri School of Journalism. "What I've found in looking at these kinds of cases is that they tend to worship the great god finality."

Criminal defense experts say fighting the release of more records could come back to haunt prosecutors. State law requires them to turn over evidence to defense attorneys, including anything that could shed light on other suspects and help the defendant.

"They better pray there's nothing exculpatory in there," said Bob Rigg, a criminal defense specialist at the Drake University Legal Clinic. "The idea of nondisclosure is fraught with problems for them."